Giancoulas v. Aetna Life Insurance Company of Canada
The motions judge erred by ordering dismissal without sufficiently applying the principle that dismissal is a last resort and without being satisfied that giving the appellant one further opportunity to complete the defence medical examinations would cause non-compensable prejudice; accordingly the Court allowed the...
Source-derived case information.
- Citation
- C36655
- Parties
- Appellant: Ted Giancoulas; Respondent: Aetna Life Insurance Company of Canada
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 1 May 2002
- Procedural Posture
- Civil Appeal / Appeal From Motions Judge Order Dismissing Action for Failure to Attend Defence Medical Examinations
- Outcome
- Appeal allowed in part; order dismissing action set aside and conditional compliance ordered
- Legal Topics
- Dismissal for Non Compliance, Defence Medical Examination, Sanctions, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ted Giancoulas
Appellant
Aetna Life Insurance Company of Canada
Respondent
Procedural Posture
Civil Appeal / Appeal From Motions Judge Order Dismissing Action for Failure to Attend Defence Medical Examinations
Legal Issues
- 1 Whether dismissal of the action for failure to complete court-ordered defence medical examinations was appropriate
- 2 Whether the motions judge applied the principle that dismissal is a measure of last resort
- 3 Whether further opportunity to comply would cause non-compensable prejudice
Ratio Decidendi
The motions judge erred by ordering dismissal without sufficiently applying the principle that dismissal is a last resort and without being satisfied that giving the appellant one further opportunity to complete the defence medical examinations would cause non-compensable prejudice; accordingly the Court allowed the appeal in part, set aside the dismissal and imposed conditional orders requiring payment for the missed appointment and completion of the examinations on the first available date, failing which the respondent may move to dismiss the action.
Court Disposition
Appeal allowed in part; order dismissing action set aside and conditional compliance ordered
Orders
- Order of Lack J. dated June 21, 2001 dismissing the action is set aside
- Appellant shall forthwith pay respondent $1,287.50 on account of missed appointment at Work Able Centres Inc. on September 12, 2000
Full Case Text
Judgment text and source record
1 paragraphs
Giancoulas v. Aetna Life Insurance Company of Canada Collection Decisions of the Court of Appeal Date 2002-05-01 Docket numbers C36655 Judges Sharpe, Robert J.; Cronk, Eleanore Ann; Gillese, Eileen E. Subject Civil Decision Content DATE: 20020501 DOCKET: C36655 COURT OF APPEAL FOR ONTARIO RE: TED GIANCOULAS (Appellant) –and– AETNA LIFE INSURANCE COMPANY OF CANADA (Respondent) BEFORE: SHARPE, CRONK and GILLESE JJ.A. COUNSEL: Jonathon Kahane-Rapport, for the appellant Marla Cox, for the respondent HEARD: April 23, 2002 RELEASED ORALLY: April 23, 2002 On appeal from the order of Justice Myrna L. Lack dated June 21, 2001. ENDORSEMENT [1] The appellant seeks to set aside the order of Lack J. dated June 21, 2001 dismissing his action for failure to attend for defence medical examinations as required by the order of Goodman J. dated August 10, 2000. In fact, the appellant did attend for the examinations, although he left before they were completed and made no effort thereafter to reschedule an appointment to complete them. [2] On the record before this court, it is clear that the appellant has been dilatory and uncooperative in attending to complete the defence medical examinations. Nonetheless, the dismissal of his action is a measure of last resort which should only be utilized in the clearest of cases. Further, we are not satisfied that permitting the appellant one further opportunity to attend to complete the required defence medical examinations will result in non-compensable prejudice. Moreover, it is not clear that the motions judge addressed these principles. [3] Accordingly, the appeal is allowed in part, the order of Lack J. dismissing the appellant’s action is set aside, the appellant is required to forthwith pay to the respondent the sum of $1,287.50 on account of his missed appointment at Work Able Centres Inc. on September 12, 2000 and the appellant shall attend to complete the required defence medical examinations on the first date available to the respondent’s expert, failing which the appellant’s action shall be dismissed on motion of the respondent. [4] We see no reason to interfere with the costs award of the motions judge. The motion below was caused by the conduct of the appellant. No costs are awarded in respect of this appeal. “Robert Sharpe J.A.” “E.A. Cronk J.A.” “E. Gillese J.A.”